Harris County Children's Protective Services v. Olvera

• Citation: 971 S.W.2d 172
• Decision Date: 25 June 1998
• Docket Number: No. 14-97-00275-CV,14-97-00275-CV
• Parties: HARRIS COUNTY CHILDREN'S PROTECTIVE SERVICES, Appellant, v. Diana OLVERA and Jane S. Thies, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 172

971 S.W.2d 172

HARRIS COUNTY CHILDREN'S PROTECTIVE SERVICES, Appellant, v. Diana OLVERA and Jane S. Thies, Appellees.

No. 14-97-00275-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

June 25, 1998.

William S. Cox, Sandra D. Hachem, Houston, for appellant.

Diana Olvera, Houston, for appellees.

Before MURPHY, C.J., HUDSON and FOWLER, JJ.

CORRECTED OPINION ON MOTION FOR REHEARING

FOWLER, Justice.

We withdraw our previous opinion and substitute this one for it. The dispositive question in this appeal is whether a family district court judge has jurisdiction to award ad litem attorney's fees for services performed on appeal when that issue was not remanded to the trial court. A secondary question is whether this court's mandate ordering one of the parties to pay all costs on appeal invested the family district court with the authority to assess as part of those costs attorney's fees on appeal. The answer to both questions is no, and, for that reason, we (1) reverse the judgment of the trial court awarding these fees to appellees, Diana Olvera ("Olvera") and Jane C. Thies ("Thies"), and ordering appellant, Harris County Children's Protective Services ("CPS"), to pay the fees and (2) remand the case to the trial court for the judge to award the ad litems their fees on appeal.

THE TWO APPEALS

Olvera, Thies, and CPS have been parties to two separate appeals in this court. Both of these appeals stemmed from the trial court's award of ad litem attorney's fees for services performed in a divorce/custody case between Cathy Lynn Walker and James Bryan Walker in which CPS intervened. The first appeal involved a judgment awarding ad litem attorney's fees in the Walker divorce for services performed by Thies as attorney ad litem for the Walker children and for services performed by Olvera as attorney ad litem for the indigent James Walker. See TEX. FAM.CODE ANN. § 11.10(d)

                (Vernon 1986). 1  In the first appeal, CPS contended the trial court abused its discretion when it determined the Walkers were indigent and when it awarded allegedly unreasonable and excessive ad litem attorney's fees to Olvera and Thies.  The judgment awarded a specific amount of fees for trial, and awarded fees for the appeal, but did not award a specific amount.  This court affirmed the trial court judgment.  The mandate did not remand any issues to the trial court, including ad litem attorney's fees on appeal.  This second appeal involves the ad litem attorney's fees the trial court awarded to Olvera and Thies for services they performed during the first appeal.   The court, however, did not set the amount of these appellate fees until after this court's mandate issued in the first appeal, and, as we noted, we did not remand this issue to the trial court
                

THE TRIAL COURT'S SUPPORT FOR ITS ORDER

The trial court cited five reasons its award of appellate attorney's fees was appropriate: (1) The December 16, 1994, order involved in the first appeal setting fees for work performed in the trial court; (2) a January 30, 1995, order awarding appellate attorney's fees but reserving a specific amount until after the appeal; (3) our mandate in the first appeal ordering CPS to "pay all costs incurred by reason of this appeal"; (4) section 11.10(d), (e) of the Texas Family Code (requiring a trial judge to appoint attorneys ad litem to represent children and indigent parents when a governmental entity seeks termination of the parent-child relationship and stating that the ad litems are entitled to a reasonable fee to be paid by the county if the parents are indigent); and (5) section § 11.18(a) of the Texas Family Code (stating that reasonable attorney's fees may be taxed as costs and may be ordered paid directly to the attorney).

THE PROCEDURAL TIME LINE

This case has a very unusual procedural time line which impacts the outcome of the case, and so we have chosen to list it, despite its length.

a.) September 2 and 8, 1994--The trial court enters Orders awarding Olvera and Thies ad litem attorney's fees of $3,525 and $3,037.50 to be paid by CPS for Olvera's and Thies's services.

b.) December 7, 1994--CPS files a cost bond for its appeal of the two orders.

c.) December 16, 1994--The trial court signs "Interlocutory Judgment on Interim Attorney Ad Litem Fees" reducing the September orders to judgment and orders post judgment interest to accrue from September until fee payment.

d.) January 30, 1995--The trial court enters an "Order Granting Entitlement to Additional Ad Litem Fees on Appeal" declaring "[t]he amount of attorney's fees to be awarded to Movants for defending the ... appeal will be determined after submission of a proper Motion for Costs." (emphasis added).

e.) April 30, 1996--The trial court severs the ad litem attorney's fees issue from the remainder of the case and dismisses the remainder of the case. At this time, the December 16, 1994, interlocutory judgment becomes final. ² f.) July 11, 1996--This court's opinion in the first appeal affirms the trial court's award of ad litem fees in the December 16 judgment.

g.) October 2, 1996--This Court's mandate in the first appeal orders CPS to pay all costs for the appeal.

h.) January 15, 1997--The trial court enters an order (1) awarding Olvera $8,468.75 and Thies $7,625 in ad litem fees incurred during the first appeal and (2) ordering CPS to pay the fees as set forth in the mandate.

NO JURISDICTION TO AWARD APPELLATE ATTORNEY'S FEES

The first reason the trial court erred in its award of appellate attorney's fees to Olvera and Thies was because it had lost plenary power over the issue of attorney's fees on appeal. Once it lost its plenary power over the issue, the trial court no longer had jurisdiction to award attorney's fees. If no motion for new trial is filed, a trial court loses jurisdiction to act in a case thirty days after the judgment becomes final. See TEX.R. CIV. P. 329b(d). When a case is appealed and the trial court loses plenary power, the trial court retains continuing jurisdiction only to order or modify the amount or type of security, to suspend execution of the judgment, or to correct clerical mistakes in the judgment. See TEX.R.APP. P. 24.3; ³ TEX.R. CIV. P. 316. But, even the court's "exercise of discretion" in setting the security is subject to review by the court of appeals. TEX.R. CIV. P. 24.3; ⁴ TEX.R. CIV. P. 24.4. ⁵ In this case between CPS and the ad litems, the trial court retained plenary jurisdiction over the case until thirty days after the severance order was signed; thus, the December 16, 1994 judgment was indeed interlocutory, as noted on its face. During the time that it had plenary jurisdiction over the case, the al trial court held, in its January 30, 1995, order, that the ad litems ere were entitled to attorney's fees on appeal. This order was valid. But, during this same period the ad litems never requested, and he the trial court never fixed, a specific amount the ad litems should be awarded. By the time this Court's mandate issued six months after er the severance order, the trial court was far beyond its plenary jurisdiction to award an amount of attorney's fees on appeal. The he only way the court could regain jurisdiction over attorney's fees § or or any other issue in the case was if this Court had reversed and remanded the case to the trial court, or had remanded the case t o the trithe trial court to enable it to award ad litem fees on appeal. See TEX.R.APP. P. 43.2, 43.3; ⁶ see also, Cahill v. Lyda, 826 S.W.2d 932, 933 (Tex.1992). This court did not remand the case to the trial court, but instead, it affirmed the judgment of the trial court.

"When an appellate court affirms a judgment, upon issuance of its mandate the trial court has the duty to give effect to the judgment by executing proper orders." Myers v. Myers, 515 S.W.2d 334, 335 (Tex.App.--Houston [1 st Dist.] 1974, writ dism'd); see TEX.R.APP. P. 51.1. ⁷ These orders by the trial court are purely ministerial. "When an appellate court renders a judgment in a case Olvera and Thies rely on Cahillto support their claim that the trial court had the authority after the conclusion of the appeal to award appellate attorney's fees to them. Cahillis factually similar to this case. An ad litem was appointed to represent the missing heirs in an adverse possession claim. As with this case, the ad litem did not present evidence of attorney's fees for the appeal, although the ad litem made a request in the trial court to be paid those fees. In addition, as with this case, the trial court made no specific award of attorney's fees on appeal. Unlike this case, however, the ad litem made a request to the appellate court to be paid his fees on appeal.

                the district court has no jurisdiction to review, interpret or enforce it.  It must observe and carry out the mandate of the appellate court.  Its orders carrying out the mandate are ministerial."  Myers, 515 S.W.2d at 335.   The trial court's actions after the issuance of our mandate went beyond a ministerial capacity when it used our mandate to initiate a determination of appellate attorney's fees.  As the trial court acted without reference to any guiding rules and principles of law by modifying our mandate, the trial court abused its discretion
                

After noting that the ad litem had to bring the appeal for the missing heirs, the court concluded that the ad litem was entitled to be paid his attorney's fees on appeal; it also stated that ad litems appointed under rule 244 are entitled to their fees whether they win or lose an appeal. See TEX.R. CIV. P. 244.; Cahill, 826 S.W.2d at 933. " 'Forcing attorneys to accept court appointment for a contingent representation would surely frustrate the effective representation of unknown clients.' " Id. (quoting Rhodes v. Cahill, 802 S.W.2d 643, 647 (Tex.1990)). The court then remanded the case to the trial court for it to set attorney's fees on appeal.

Olvera and Thies argue that Cahill...